I dissent from the majority’s interpretation of MCL 221.20; MSA 9.21, the highway-by-user statute. I believe the majority’s interpretation sanctions the unconstitutional taking of private property without compensation in violation of the Fifth Amendment of the United States Constitution and art 10, § 2 of the Michigan Constitution. The majority’s interpretation also violates appellees’ Fourteenth Amendment right to procedural due process.
The majority relies on Bumpus v Miller, 4 Mich 159 (1856), to support its holding that the highway-by-user statute authorizes taking more property than has been actually used by the public. However, this interpretation of Bumpus was expressly found unconstitutional by subsequent decisions of this Court, including, Eager v State Hwy Comm’r, 376 Mich 148; 136 NW2d 16 (1965), and Smith v State Hwy Comm’r, 227 Mich 280, 283-286; 198 NW 936 (1924).
Further, the majority incorrectly relies on Bd of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972), and Texaco v Short, 454 US 516; 102 S Ct 781; 70 L Ed 2d 738 (1982), to justify placing the burden of preserving a fee simple interest in real property on the property owner. The majority would impose on modem property owners the burden of proving that a predecessor in title, of perhaps 160 years ago, acted within the first 10 consecutive years after the highway was first established, in order to rebut a fictional offer of dedication of four *678full rods implied from that predecessor’s acquiescence to the public use of less than four rods.1
Finally, the decisions of this Court which are subsequent and contrary to Bum/pus, spanning 1883 to 1965, eliminate the value of any “notice” that can be ascribed to property owners by the mere enactment of the highway-by-user statute.
For all practical purposes, the presumption of an implied dedication of four rods as defined by the majority is irrebuttable and, therefore, unconstitutional because it amounts to nothing less than the seizure of property without just compensation or actual use.
I would affirm the circuit court holding and reaffirm this Court’s decisions in Eager v State Hwy Comm’r, and Smith v State Hwy Comm’r, supra, that the highway-by-user statute is constitutional only when interpreted to afford the public a highway as wide as has been actually used.
i
The Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Const 1963, art 10, § 2 similarly provides:
Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.
*679There has never been any doubt that this prohibition applies to the physical seizure of real property. I believe that the highway-by-user statute should be read as limiting the presumption of width to the extent actually used. The majority’s interpretation, which creates a four-rod presumption, effects a physical seizure of property without compensation and is, therefore, unconstitutional.
A
The highway-by-user statute currently provides in pertinent part:
All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for 10 years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used 8 years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use, shall be 4 rods in width .... [MCL 221.20; MSA 9.21.]
This Court has interpreted the highway-by-user statute to create a rebuttable presumption that a property owner abutting a highway established by use impliedly dedicated the land for use as a public highway. See, e.g., Smith v State Hwy Comm’r and Eager, supra. The question in this case regards the width of the highway established by the implied dedication.
Implied dedications are distinguishable from statutory dedications. Statutory dedications require actual written dedication by a recorded plat describing the scope of land dedicated and actual acceptance and *680maintenance by the appropriate public authorities. Implied dedications, on the other hand, require no actual writing, only a fictional offer implied from the property owner’s acquiescence to public use, and the acceptance of the fictional offer by actual use and maintenance of the dedication by the appropriate public authority.2 Whether implied or by statute, an offer to dedicate requires actual acceptance in the form of use by the public entity with authority over the road. Indian Club v Lake Co Rd Comm’r, 370 Mich 87; 120 NW2d 823 (1963), and Wayne Co v Miller, 31 Mich 447, 448-449 (1875).3 Acceptance of implied dedications is garnered from “the facts and surrounding circumstances.” Smith v State Hwy Comm’r, supra, p 286.
Other state courts addressing similar highway-by-user statutes do so in terms of prescription, requiring evidence of open, notorious, and uninterrupted use by the public. Indeed, one Michigan case discusses the *681Mghway-by-user statute in terms of prescription. See, e.g., Village of Manchester v Clarkson, 195 Mich 354, 363; 162 NW 115 (1917). I believe that prescription is the more appropriate theory to apply to the Mghwayby-user statute because it is the evidence of use adverse to the abutting property owners for a prescribed period that establishes a Mghway by use. It is oMy constitutional for the government by statute and without compensation to offer vested property rights for public use if the government demonstrates acceptance tMough actual use in response to the fictional offer of implied dedication, and then only to the extent actually used. M tMs respect, implied dedication is the functional eqmvalent of prescription.
Applying either prescription or implied dedication, it is the evidence of public use and maintenance by public authorities that is determinative of the existence of a public Mghway. Failure by the public to use the full four rods anticipated by the Mghway-byuser statute simply results in the public’s acquiring less than four rods. Mdeed, a Mghway by user is not “affected by the fact that the land within the Mghway boundaries may be of a width less than four rods or more than four rods.” Trowbridge v State Hwy Comm’r, 296 Mich 587, 599; 296 NW 689 (1941) (emphasis added). Trowbridge held that the fact that the strip of land between the paved portions of a super Mghway was wider than four rods would not prevent that strip from becoming a Mghway by user under the statute because a Mghway by user is as wide as actually used. Id.
*682B
Contrary to this precedent, however, the majority reads the highway-by-user statute to create a rebuttable presumption that the highway is four-rods wide, regardless of the extent of actual use. The majority’s assumption that the Legislature can draft a statute that destroys a fee simple interest in real property without compensation or proof of actual use is no less than a sanctioning of the unconstitutional seizure of private property.
The majority claims that the highway-by-user statute merely modifies common-law dedication by allowing the government to take more than has been actually used. See ante, p 654 and n 2 supra. However, regardless of the common-law theory being modified by statute, the Legislature is bound by the federal and state constitutions.4 It is fundamental that a statute cannot offend or amend the constitution. Thus, the majority’s interpretation, which would effectively hold that the mere enactment of the highway-by-user statute operates to acquire property beyond that actually used, sanctions the unconstitutional taking of private properly for public use without compensation.
The concurrence/dissent similarly suggests that the highway-by-user statute merely modifies the common law of prescription. The concurrence/dissent’s argument that the fee is not lost because the highway-by-*683user statute takes only an easement, however, is contrary to Nollan v California Coastal Comm, 483 US 825, 831-832; 107 S Ct 3141; 97 L Ed 2d 677 (1987), where the Supreme Court recognized:
Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking .... [W]e [have] observed that where governmental action results in “[a] permanent physical occupation” of the property, by the government itself or by others . . . “our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” ... We think a “permanent physical occupation” has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.
Further, in apparent reliance on Texaco, supra, the concurrence/dissent appears to argue that there is no difference between modifying the common-law duration of prescription and modifying the scope of prescription. However, the concurrence/dissent fails to understand that the duration of the prescriptive period is an issue of procedural due process, while modifying the scope of property acquired by prescription necessarily implicates the Fifth Amendment’s substantive prohibition against the government’s seizure of property without just compensation.
*684l
For its proposition that an abutting owner must rebut his, or his predecessor’s, implied dedication of a full four rods, the majority relies on this Court’s decision in Bumpus v Miller, supra. 5 While the majority may be “reaffirming” Bumpus, it fails to acknowledge a fine of subsequent Michigan case law that is contrary to Bumpus.6
The interpretation of the highway-by-user statute attributed to Bumpus by the majority was expressly *685held unconstitutional in Eager v State Hwy Comm’r and Smith v State Hwy Comm’r, supra. The Eager Court stated:
Defendant claims that the road was created by user, under that statute, and is, therefore, 4 rods wide. For this conclusion defendant relies on Bumpus v Miller, 4 Mich 159, and Kruger v LeBlanc, 70 Mich 76 [37 NW 880 (1888)]. If they were authority therefor, we agree with the trial court that the later decisions of this Court, in Wayne County Savings Bank v Stockwell, 84 Mich 586 [48 NW 174 (1891)], Smith v State Highway Commissioner, 227 Mich 280, and Trowbridge v State Highway Commissioner, 296 Mich 587, are to the contrary, holding that a highway by user becomes such to the width and extent used. We agree with the trial court that privately owned land cannot become public road by user beyond the portion used as such merely by the above noted statutory pronouncement to that effect. To so hold would be violative of the Constitution of 1850, art 18, § 14, Constitution 1908, art 13, § 1, which prohibited taking by the public of private property except upon determination of necessity and just compensation “being first made or secured.” [Id., pp 153-154 (emphasis added).]
This Court recognized in Smith v State Hwy Comm’r, supra, p 284, “[t]hat the legislature did not intend by the act ... to change existing highways, and that it could not by legislative enactment take property of the individual without compensation is settled in this court.”
The majority simply and completely fails to address this and also ignores a long series of opinions holding that highways established under the highway-by-user statute are not presumptively four-rods wide, but are only as wide as the extent used. See also Scheimer v Price, 65 Mich 638, 639; 32 NW 873 (1887), Coleman v Flint & P M R Co, 64 Mich 160; 31 NW 47 (1887), *686Wayne Co Savings Bank v Stockwell, supra, p 590, and Trowbridge, supra.
The majority’s holding also renders meaningless this Court’s repeated holding that a highway or any portion of it can be lost by nonuse, Lyle v Lesia, 64 Mich 16; 31 NW 23 (1887); Gregory v Knight, 50 Mich 61, 64; 14 NW 700 (1883); Smith v State Hwy Comm’r, supra. Under these cases, even if a highway is initially presumed to be four-rods wide, failure to use a portion of the four rods should return the unused portion to the abutting and contiguous landowner. The current statutory period to establish non-use for highways that have been laid out is four years. MCL 221.22; MSA 9.23. It would be an absurdity to conclude, as the majority effectively does, that highways actually laid out can be lost by nonuse, but that a portion of highways established by use can never be lost by nonuse. Where there is a formal abandonment of a highway, evidenced by the intent to abandon and actual abandonment, the number of years that have passed is irrelevant. See, e.g., Roebuck v Mecosta Co Rd Comm, 59 Mich App 128, 132; 229 NW2d 343 (1975).
2
In addition to this, the majority’s reliance on Bumpus is in error. The version of the highway-by-user statute at issue in Bumpus did not provide that highways by user must be four-rods wide. Bumpus’ conclusion that the statute did was a mistake. The version of the statute at issue in Bumpus discussed four-rods width only in terms of highways that were “laid out” by the “commissioners of highways,” not *687those highways established by use.7 Id., p 161. Highways established by use, are obviously not “laid out” by public authorities, but rather are established by years of use.8 It is not until the 1881 version of the highway-by-user statute that the statute applies the four-rods width to both highways laid out and those established by use. The cases interpreting the 1881 and subsequent versions of the statute find the majority’s literal interpretation to be unconstitutional and limit the width of highways established by use to the extent actually used. See, e.g., Scheimer v Price; Coleman v Flint & P M R Co; Wayne Co Savings Bank v Stockwell; Trowbridge; Eager; and Smith v State Hwy Comm’r, supra.9
*688Further, 1846 RS, tit 6, ch 25, § 29 required use for 20 years or more rather than the mere 10 years required under today’s highway-by-user statute. While an additional ten years of notice arising from actual use does not justify taking more than is actually used, given due process considerations discussed in part n, it is certainly a different circumstance than that presented today.
c
The majority next unsuccessfully attempts to distinguish its interpretation of the highway-by-user statute from the United States Supreme Court’s holding in Nollan v California Coastal Comm, supra. In Nollan, the California Coastal Commission imposed a condition on the plaintiff’s home reconstruction project allowing public access to the beach across the plaintiff’s property. Nollan held that because there was no public purpose supporting the condition except the securing of an easement to facilitate public travel across private property, the government was required to condemn the property and pay just compensation. Id., pp 837-839. The majority attempts to distinguish Nollan on the ground that “the Michigan statute allows the landowner to assert the right to the property within 10 years after the creation of the road as a public road by use.” Ante, p 662. The majority’s analysis is flawed.
The error of the majority’s reasoning regarding Nollan is based on its misinterpretation and misapplica*689tion of two United States Supreme Court decisions, and is further evidence of its failure to recognize the Fifth Amendment’s and Const 1963, art 10, § 2’s protection of fee simple interests in real property. The practical effect of the majority’s interpretation of these cases is to shift the burden of proof from the government to the private property owner, that is, what should be the government’s burden of demonstrating acceptance of the fictional offer of implied dedication is twisted to become the property owner’s burden of showing that the fictional offer of implied dedication was of less than four rods.
In addition, to justify its conclusion, the majority relies on what is a flawed application of Bd of Regents and Texaco, supra. The majority cites Bd of Regents for the idea that the state may create and define property interests. While this idea is applicable where there is some question regarding whether the person claiming a taking actually has a protected property interest, its application in this context, where the existence of a protected property interest (fee simple title) is not in doubt, is illogical.
Bd of Regents addressed whether a nontenured professor had a property right in continued employment. This question has little application regarding whether the ownership of real property is a constitutionally protected interest. Bd of Regents in fact recognized that there is no question regarding the protected status of real property when it stated:
The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. [Id., pp 571-572.]
*690Despite this, the majority combines the Bd of Regents’ concept that states may define property interests with, Texaco, supra, a case involving the ownership of mineral interests, to justify affording Michigan property owners whose land abuts public highways fee simple interests of “less than absolute duration.” Ante, p 651.
Citing Texaco v Short, supra, a case addressing the constitutionality of an Indiana mineral lapse act, the majority concludes that the state may condition ownership of fee simple interests in real property on the owner’s lack of action in opposition to the fictionally implied dedication of four rods within the first consecutive 10 years of use of a lesser amount of the owner’s land as a public highway. Reliance on Texaco for this holding is unsound.
Texaco held that a state statute causing the ownership of mineral interests to lapse if the interest went “unused” for a period of twenty years was constitutional.10 However, Texaco recognized that its decision was of limited application. It stated:
[T]he length of the period that is afforded to a mineral owner to use the interest, the variety and minimal extent of the actions that constitute a statutory use, and the length of *691the statutory grace period are sufficient to entitle the State to indulge in the assumption that — if no statutory use is made in a 20-year period and no statement of claim is filed in the 2-year grace period, if applicable — the mineral owner has abandoned the property. We need not decide today whether the State may indulge in a similar assumption in cases in which the statutory period of nonuse is shorter than that involved here, or in which the interest affected is such that concepts of “use” and “nonuse” have little meaning. [Texaco, supra, p 536, n 28 (emphasis added).]
It is logical, fair, and basic to procedural due process, as addressed in part n, to assume that a fee simple interest in land would be accorded the same if not more time to assert ownership than an interest in minerals. Yet the majority finds constitutional its interpretation of the 10-year period of the highway-by-user statute, thereby affording owners of fee simple interests in real property only half the 20 years afforded owners of mineral interests to protect their interest.
Further, the concepts of “use” and “nonuse” have “little meaning” to a fee simple property owner. Texaco’s discussion of fee simple interests of less than permanent duration was in reference to mineral interests. Unlike mineral interests, which have historically been subject to requirements of expedient use, the concept of “use”11 in the context fee simple title is irrelevant.12 “Use” of property is only relevant to fee *692simple title when it is the use by a person or entity seeking to adversely possess land from the holder of fee simple title. The holder of fee simple title is not required to use his land or to act in any way to prevent his losing it unless there is an adverse user. To take Texaco’s statement out of context and apply it to fee simple interests in land is improper. It effectively transforms a fee simple interest into a fee simple defeasible, e.g., a fee that “may be defeated on the happening of an event.”13 The “event” that the majority would have defeat a fee simple is the random and unpredictable decision by public authorities to expand a public highway beyond what has actually been used.
There is simply no justification for the majority to equate the lapsing of mineral interests resulting from neglect with the government’s taking of real property without just compensation or actual use. The majority astonishingly and without citation of any authority equates the abandonment of mineral interests to the implied dedication of real property because it “believe[s] that the analysis is the same under either.” Ante, p 652. Texaco described the statutory extinguishment of a mineral interest as the mere “withdrawal of a remedy.” Id., p 528. The majority’s comparison of abandoned mineral interests to fee simple title appears to be the destruction of a constitutional right masquerading as the mere “withdrawal of a rem*693edy.” See El Paso v Simmons, 379 US 497, 506-507; 85 S Ct 577; 13 L Ed 2d 446 (1965).
Support to distinguish the majority’s application of the highway-by-user statute from mineral lapse acts is found in Van Slooten v Larsen, 410 Mich 21; 299 NW2d 704 (1980), where this Court upheld the constitutionality of Michigan’s dormant minerals act. As to the claim that the dormant minerals act violated the defendant’s constitutional protection against the deprivation of property without due process, this Court distinguished the effect of the dormant minerals act from statutes that require property owners in “possession of all” to act within a specified time or lose their property. The latter types of statute, this Court stated,
have been held unconstitutional because a state cannot require one in possession of all that he demands to prosecute a suit to preserve his interest when no adverse interest is asserted by suit or possession .... [T]he act does not unconstitutionally change defendants’ property rights into mere causes of action. [Id., pp 41-42, citing Groesbeck v Seeley, 13 Mich 329 (1865) (emphasis added).]
A fee simple interest in real property is the “possession of all,” its owner “is entitled to the entire property, with unconditional power of disposition during one’s life, and descending to one’s heirs and legal representatives upon one’s death intestate. Such estate is unlimited as to duration, disposition, and descendibility.” Black’s Law Dictionary (6th ed), p 615.
The majority’s conclusion that forcing a property owner to assert his right to property within the four rods prescribed by statute by some maimer “calculated to interfere with, disturb, or interrupt the use by the public, or by instituting an action in court” ren*694ders his fee simple interest into a mere cause of action. Ante, p 655 (emphasis added). This interpretation violates the basic principle of fee simple title and is, therefore, unconstitutional.
The only case applying Bd of Regents’ concept that the state may define property to real property did so in the context of regulatory taking, not the physical seizure of land. Lucas v South Carolina Coastal Council, 505 US 1003, 1030; 112 S Ct 2886; 120 L Ed 2d 798 (1992).14 Regulatory taking involves the effect of zoning and environmental laws that may in some way limit or affect a property owner’s use of his property. However, unlike the majority’s interpretation of the highway-by-user statute, such laws do not give the government the right to possess or use the property owner’s land. Lucas recognized that a state may regulate real property, but held that to impose a regulation that destroys all economically beneficial or productive use of land is unconstitutional. The Court likened such regulation to a physical invasion requiring compensation. Lucas recognized that a permanent physical invasion of real property “no matter how minute the intrusion, and no matter how weighty the public purpose behind it” requires compensation. Id., p 1015. The majority’s interpretation of the highway-by-user statute effects such a permanent physical invasion of real property and, therefore, is unconstitutional.
Thus, the majority’s contention that the benefits of public highways justify the “ ‘slight burden’ ” they *695would impose is absurd. See ante, p 655. It is fundamentally contrary to taking jurisprudence to justify the seizure of property by balancing the value of a fee simple interest against its potential value and use to the public. To take Bd of Regents’ statement that “[property interests, of course, are not created by the Constitution,” id., p 577, which refers to what, if any, property right exists in a nontenured professorship, and apply it so that it destroys a property owner’s fee simple interest in real property flies in the face of the Fifth Amendment’s admonition: “nor shall private property be taken for public use, without just compensation,” and Const 1963, art 10, § 2.
As interpreted by the majority, the statute effects the same result that Nollan would have found unconstitutional, it “make[s] an easement across [property] available to the public on a permanent basis . . . .” Id., p 831. Because the majority’s interpretation of the highway-by-user statute exacts a permanent easement from all property owners whose land abuts public highways established by user beyond that actually used, I find its interpretation unconstitutional.
n
Although I would find dispositive the majority’s substantive affront to the Fifth Amendment’s protection of property and Const 1963, art 10, § 2, I must also address the majority’s procedural due process analysis under the Fourteenth Amendment where a person is deprived of real property. The majority casually rejects the appellee’s argument that the four-rod presumption under the highway-by-user statute violates due process.
*696At its most basic level, procedural due process requires fairness. As recited by Nowak & Rotunda, Constitutional Law (4th ed), § 13.8, p 525, the essential elements of procedural due process are:
(1) adequate notice of the charges or basis for government action; (2) a neutral decision-maker; (3) an opportunity to make an oral presentation to the decision-maker; (4) an opportunity to present evidence or witnesses to the decision-maker; (5) a chance to confront and cross-examine witnesses or evidence to be used against the individual; (6) the right to have an attorney present the individual’s case to the decision-maker; (7) a decision based on the record with a statement of reasons for the decision.
The fundamental unfairness caused by the majority’s interpretation of the highway-by-user statute is the ineffectiveness of any notice that can be ascribed to past or present landowners by the mere enactment of the highway-by-user statute. Citing Texaco, supra, the majority states that the enactment of a statute is “generally” enough to afford citizens a “reasonable opportunity to familiarize themselves with the terms of a statute to advise its citizens of the lapse of a property right.” Ante, p 664. The application of procedural due process standards from a mineral rights case to a case involving fee simple interests in real property is simply incorrect15 because it is recognized that when *697the property taken is real property, due process requires greater procedural protection. Schroeder v City of New York, 371 US 208; 83 S Ct 279; 9 L Ed 2d 255 (1962); Walker v City of Hutchinson, 352 US 112; 77 S Ct 200; 1 L Ed 2d 178 (1956).
The United States Supreme Court has held that the notice required when real property is taken is more than the mere enactment of a statute. Id. When real property is taken, due process requires that notice be given by mail to both the owner and the mortgagee of the property. Id. These cases found that forms of notification such as posting notices on trees and in local papers were insufficient where the name and address of persons directly affected are easily ascertainable. Given that this Court and MCL 211.61a; MSA 7.106 afford a property owner who has become delinquent in property taxes due process including notice by mail reasonably calculated to reach the property owner,16 it is illogical and unreasonable to find less process due individuals whose property happens to abut highways established by use. It simply defies logic to assume that the enactment of a statute would be or has been sufficient to notify past, present, or future owners of property abutting public highways by user that the intent when the highway was established was to take more than that used.17 Because the *698majority’s interpretation of the highway-by-user statute effects a taking of property, notice must be given beyond that which can be attributed to the mere enactment of the statute. The majority’s interpretation of the highway-by-user statute ignores reason and fairness.18
Furthermore, the majority’s contention that 10 years provides “ample” opportunity to rebut the four-rod presumption suffers from numerable flaws. For the modem property owner, it is not just “difficult to determine the date the highway was created,” ante, p 663, n 7, but rather it is practically impossible to demonstrate that a predecessor rebutted the presumption.19 The first obstacle is determining when a road began being used by the public. The second is to *699determine whether at that time, up to 160 years ago, the property owner acted in any way to rebut the presumption. The third is discovering if ever over the course of the subsequent years the highway was lost by nonuse. Physical proof of ancient fences or agricultural uses may be long faded. The memories of old-timers may well be rendered unavailable by death or may be too imprecise to assist a modem day property owner attempting to exclude public users beyond the extent of the highway actually used.
Most importantly, as addressed in part 1(B)(1), our Court has not consistently agreed with the majority’s interpretation of the statute or found it to be constitutional. Indeed, a leading authority on Michigan real property law recognized that there was “confusion” in early decisions regarding the scope of a public highway established by user. 2 Cameron, Michigan Real Property Law (2d ed), § 25.9, pp 1162-1163. Cameron concluded, following this Court’s decision in Eager, supra, however, that it is now “fairly clear” that such highways are limited to the extent of use, even though the statute itself states that public highways “ ‘shall be 4 rods in width.’ ” Id., p 1162.
The significance that this Court’s inconsistency regarding both the meaning of the highway-by-user statute and whether the majority’s interpretation is constitutional would have had on the expectations of property owners and purchasers of lands abutting highways throughout the years is clear. Had a highway by user begun after this Court’s decision in McKay, supra, in 1886, a consultation by a property owner or potential purchaser of property with an attorney would have revealed that the statute created a highway by user only to the extent of the width *700actually used. Legal research after 1924 and this Court’s decision in Smith v State Hwy Comm’r, supra, would have shown the application now proposed to be expressly unconstitutional. It is fundamentally unfair to take a modem property owner’s land because of a predecessor’s failure to act, when it would have reasonably been understood by the predecessor, given the decisions of this Court, that no action was necessary to limit the width of a public highway to the extent actually used.
The highway-by-user statute has seen significant changes in substance witnessed in the first half century of its creation. The length of time the statute has required to establish use is different from its original enactment in 1838. From 1838 to 1857 the statute prescribed no less than 20 years to establish a highway by user. Note, however, that there is a period between the 1846 and 1857 statutes, because both enactments prescribed 20 years for highways established before their enactment, but only 10 years after. It would have been then, and now under the majority’s interpretation, very difficult if not impossible to determine how many years it took to establish a public highway by use if the use began between 1846 and 1857. From 1871 to the present, the statute has prescribed a mere 10 years. Because the majority forces a modem property owner to provide evidence that the use of four rods was rebutted by a predecessor who owned the property when the highway was first established, property owners face the additional difficulty of determining which period of years was sufficient at the time the public highway was first established.
*701Further, as illustrated in part i(c), the 10-year period provided owners of real property under the highway-by-user statute cannot be found sufficient, given that the dormant minerals act provides 20 years to owners of mineral interests.
Further, there are idiosyncracies in the case law that leave property owners unfairly disadvantaged. For example, it was held that a property owner’s mowing within the four-rod area is insufficient to rebut the implied dedication. Eyde Bros Development Co v Eaton Co Drain Comm’r, 427 Mich 271, 299; 398 NW2d 297 (1986).20 However, it was also held that the same and even less frequent mowing by the government is sufficient to establish use. Rigoni v Michigan Power Co, 131 Mich App 336, 346; 345 NW2d 918 (1984). This disadvantage seems particularly ironic under the majority’s interpretation because the government is permitted to have land it does not even mow, while the individual can mow the same land and yet still lose it.
Turning to the case at hand, the majority states that the property within the four rods of the highway was “never owned” by the current property owners because they presented no evidence that their predecessors rebutted the presumption within the 10-year period. However, the majority cannot tell us when the 10- (or was it 20-) year period ran because there is no evidence regarding the most critical factual information to the resolution of this case, when the highway was actually established by use. While I do not doubt that 52nd Street, at issue in this case, has been a high*702way by user for over one hundred years, that fact standing alone cannot justify concluding that the public acquired more land than it actually used. Rather, it illustrates the extreme difficulty, or in truth the practical impossibility, faced by the current property owner in attempting to demonstrate that a predecessor rebutted the majority’s unconstitutional four-rod presumption. It cannot be fair to assume that the statute provided adequate notice to the current property owner’s predecessor in title, given this Court’s confusion with respect to the statute’s effect and constitutionality.
I would hold that the mere enactment of this statute provided insufficient notice to afford past or present abutting property owners procedural due process, given that their fee simple interest in real property was and is at stake. Indeed, the only practical notice given to abutting property owners would have been and is public use and maintenance of the road, to the extent it is actually used and maintained.
m
In conclusion, I do not question the importance of highways either historically or presently. Rather I question the government’s carte blanche seizure of land, as sanctioned by the majority, beyond that actually used from private property owners for public use without compensation or proof of actual use. I would find that the highway-by-user statute is constitutional as interpreted and applied for nearly a century, that is, a highway by user is only as wide as has actually been used. I would affirm the decision of the circuit court.
*703Brickley, J., concurred with Weaver, J.Or 20 years, depending upon when the highway was established. As will be discussed below, parts i(c) and n, the time, and indeed the width, prescribed by the highway-by-user statute, has varied since its original enactment.
The standard method for statutory dedication is by plat under the Land Division Act, MCL 560.101; MSA 26.430(101). See, e.g., 2 Cameron, Michigan Real Property Law (2d ed), § 25.13, pp 1166-1167; see also Kraus v Dep’t of Commerce, 451 Mich 420; 547 NW2d 870 (1996) (involving statutory dedication by plat). Unlike implied dedications, statutory dedications do not suffer the uncertainty of proving a fictional offer because “when [an] owner of property files or records a plat which marks or notes on plat portions of premises as donated or granted to public; it results in conveyance of dedicated portions in fee simple to public.” Black’s Law Dictionary (6th ed), p 413. Thus, the majority’s reference to English case law for the proposition that the highway-by-user statute “modified” the common law and “eliminated the need to prove a fictional event” is inappropriate. Ante, p 654. Far from eliminating the need to prove a fiction, this Court’s interpretation of the highway-by-user statute as being an implied dedication still effectively requires proof of a fictional offer and an actual acceptance derived from the surrounding facts and circumstances. Smith v State Hwy Comm’r, supra, p 286.
The obvious import of requiring acceptance is that private property and the associated costs of maintaining it cannot be forced on a public authority without its consent.
The concept that the taking of private property for public use without just compensation being paid therefor was included in every document governing Michigan from the ordinance for government of the Northwest Territory of 1787 to the Michigan Constitution of 1963. See, e.g., Gov’t of Northwest Territory, art 2; 1805 Gov’t of Michigan Territory, § 2; Const 1835, art 1, § 19; Const 1850, art 15, § 9 and art 18, § 14; Const 1908, art 13, § 1 and § 5; Const 1963, art 10, § 2.
The majority also cites Fuller v Grand Rapids, 105 Mich 529; 63 NW 530 (1895), and understandably without discussion, because it is inapplicable to any interpretation of the highway-by-user statute. The case does not mention the highway-by-user statute or any case interpreting it.
The road at issue in Fuller was established by resolution of the common council, not by use. As noted by the Court, the road was either “appropriated to the public use ... by condemnation [and] the owner . . . compensated in damages for taking of the land” or it was “dedicated” and the “compensation” took the form of the benefit the plaintiff’s predecessor received from the construction of an adjacent public highway. Id., p 532. As to the possibility of dedication, assumably the Court meant dedication by plat (e.g., statutory dedication) by the plaintiff’s predecessor because “compensation” in the form of benefits from an adjacent highway is irrelevant in the context of implied dedication.
Further, the road in question was established in 1884 and the plaintiff purchased the property in 1886. Id., p 530. Evidently some time between 1884 and 1886, the plaintiff’s predecessor erected a wall. Had this road been established by use, under any precedent of this Court, including Bumpus, the wall would have rebutted the implied dedication if an implied dedication were at issue. The Fuller Court’s discussion that the public’s acquiescence to the construction of the wall did not give the plaintiff or her predecessor rights in the roadway demonstrates the inapplicability of the Fuller case to the theory of implied dedications.
As the majority points out, ante, p 666,1 did sign, but did not author Kent Co Rd Comm v Hunting, 170 Mich App 222; 428 NW2d 353 (1988). However, the majority has failed to point out that the constitutionality of the highway-by-user statute was not raised in that case and the Court did not address it. The majority further fails to point out that in Jaschuk v Manistee Co Rd Comm, 205 Mich App 322; 517 NW2d 318 (1994), the constitutionality of the statute was squarely presented, and I found that creating a four-rod presumption was an unconstitutional inteipretation of the statute and an incorrect reading of Eager, supra.
1846 RS, tit 6, ch 25, § 18 stated: “Public roads to be laid out by the commissioners of highways, shall not be less than four rods wide.”
Support for this distinction is found in the early incarnations of the highway-by-user statute. The section addressing which roads were highways clearly distinguished between highways “laid out ... of which a record shall have been made” and those highways established by use over a prescribed period that are “not recorded.” See, e.g., 1838 RS, tit 6, ch 4, § 42; 1846 RS, tit 6, ch 25, § 29; 1857 CL, tit 9, ch 22, § 1079; 1871 CL, tit 9, ch 26, § 1268. Also, until 1881, all discussions of width within the highway-by-user statute were with respect to highways “laid out,” not those established by use. We would note that the width of such highways varied significantly in the early years. In 1838, the original enactment stated all “[p]ublic roads to be laid out by the commissioners of highways, shall not be less than four rods wide; and private roads shall not be less than two rods wide,” 1838 RS, tit 6, ch 4, § 26. The statutory width remained unchanged until 1857, when the statute stated, “Public roads to be laid out according to the provisions of this act, shall not be less than three rods wide, except in cities and villages . . . .” 1857 CL, tit 9, ch 22, § 1058. In 1871, the Legislature got even more specific by requiring public roads “laid out according to the provisions of this act . . . not be less than four rods wide, except in cities and villages,” while private roads were not to be “less than one rod in width.” 1871 CL, tit 9, ch 26, § 1256. It seems unlikely and would be contrary to due process that the Legislature could or would have intended that the width of highways established by use vary as much as did highways that were laid out by public authorities.
McKay v Doty, 63 Mich 581; 30 NW 591 (1886), without discussion, assumed that the 1881 version of the highway-by-user statute created a *688four-rod presumption, but did not address the constitutionality of that presumption. The four-rod presumption was found unconstitutional subsequently in Smith v State Hwy Comm’r and Eager v State Hwy Comm’r, supra.
To satisfy the “use” requirement under the Dormant Mineral Rights Act at issue in Texaco, an owner of mineral rights had to show actual or attempted production, payment of rents or royalties, payment of taxes, or filing of a statement of claim with the local recorder of deeds. Texaco, supra, p 519.
The Michigan dormant mineral rights act, MCL 554.291 et seq.-, MSA 26.1163(1) et seq., defines the requisite use of oil or gas interests similarly. If an interest in oil or gas is deemed abandoned by nonuse, the interest reverts to the surface owner. This serves the purpose of unifying title to the benefit of the public by facilitating the development of subsurface resources and eliminating fragmented title. Van Slooten v Larsen, 410 Mich 21; 299 NW2d 704 (1980).
The concept of “user,” is defined as the “actual exercise or enjoyment of any right, property, drugs, franchise, etc.” Black’s Law Dictionary (6th ed), p 1543. The majority holding that the statutory four rods is literally four rods unless rebutted during the statutory period wreaks mischief on the concept of user by allowing the government more than it actually used.
One case cited by Texaco and the majority for the proposition that states may permit unused or abandoned property interests to lapse after *692the passage of time, Hawkins v Barney’s Lessee, 30 US (5 Pet) 457; 8 L Ed 190 (1831), is inapplicable because it involved an action for ejectment under the law of adverse possession. Similarly, another case relied on by Texaco and the majority, Wilson v Iseminger, 185 US 55; 22 S Ct 573; 46 L Ed 804 (1902), addressed the lapsing of contracts for ground rent, not the lapse of fee simple title.
Black’s Law Dictionary (6th ed), p 615.
The majority’s interpretation of the highway-by-user statute should be distinguished from cases addressing the regulation of land that does not destroy all economically beneficial use, because the effect of its inteipretation literally is to seize property.
There is no case applying Texaco’s holding to fee simple interests in real property, although Texaco stated that Indiana had defined mineral interest to be the equivalent of fee simple estates in land. United States v Locke, 471 US 84; 105 S Ct 1785; 85 L Ed 2d 64 (1985), upheld a statute terminating the rights of holders of unpatented claims on federal lands. However, “unpatented” simply means that the holder’s rights were not vested, they held mere claims to land, not the fee simple title to it. It should also be noted that Indiana’s decision (and any other state’s similar decision) to afford mineral estates protection equivalent to fee simple *697interests in real property was just that, a decision, not a constitutional mandate.
See Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976).
The concurrence/dissent cites North Laramie Land Co v Hoffman, 268 US 276; 45 S Ct 491; 69 L Ed 953 (1925); Van Slooten, supra, and Curley v Beryllium Development Corp, 281 Mich 554; 275 NW 246 (1937), for the maxim that property owners are presumed to know the law. However, the only case of the three addressing real property was North Laramie, supra, which addressed a condemnation statute. Like statutes involving delinquent property taxes discussed above, condemnation stat*698utes provide for notice beyond the mere enactment of the statute. It bears repeating that the majority and the concurrence/dissent’s interpretation of the highway-by-user statute affords no notice to property owners abutting highways established by use that the government intends to take more property than has actually been used beyond the mere enactment of the highway-by-user statute. Further, there is no clear language in the highway-by-user statute regarding what procedure a property owner must follow to prevent the establishment of the highway regardless of any presumption of width.
The concurrence/dissent’s analogy to criminal due process afforded where a person’s liberty interest is at stake is unpersuasive. There are basic differences between the taking of property without more notice than the enactment of a statute and the general rule in criminal prosecutions that ignorance of the law is no excuse. Most basically, a property owner’s ownership is in violation of no law. Further, where a person’s liberty is at stake, due process is guaranteed by law: a person is afforded Miranda rights including the right to an attorney, and an attorney is provided if the person is indigent, a speedy and fair trial before a judge, the right to an appeal, etc. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
I also disagree with the majority that a property owner “will know when a road is created across his property to a relative degree of certainty.” Id. Whether a public highway by use was established and when the establishment began has been the subject of a number of lawsuits. See, e.g., Trowbridge, supra.
Eyde held that the presumption of an implied dedication was not rebutted. Its citation of Bumpus and the idea that implied dedications under the statute are four-rods wide was dicta. See Jaschuk, n 6 supra.